By Bruce Buchanan, Sebelist Buchanan Law
Mary’s Gone Crackers Inc., a natural food company based in Gridley, California, has agreed to pay $1.5 million and to establish a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office following an investigation into potential criminal violations of federal immigration laws.

According to the agreement, in March 2012, Immigration and Customs Enforcement (ICE) audited Mary’s Gone Crackers’ I-9 forms for its employees. Thereafter, ICE provided a Notice of Suspect Documents (NSD) stating that 49 of Mary’s Gone Crackers’ employees appeared not to be authorized to work in the United States. After one employee provided corrected documentation, Mary’s Gone Crackers informed ICE that the other 48 had all resigned or been terminated.

However, within less than a month, Mary’s Gone Crackers rehired at least 13 employees that it claimed had been terminated or resigned, all of them under new names. One of those 13, an operations supervisor, never stopped working for Mary’s Gone Crackers at all, but instead continued to work under a new assumed name and received payment as an independent contractor, rather than through the company’s ordinary payroll. Several other Mary’s Gone Crackers employees knew that the operations supervisor was not eligible to work in the United States. When a search warrant was executed at the company’s Gridley facility in January 2013, at least 12 of the 13 rehired individuals were still working at Mary’s Gone Crackers.

During the course of the I-9 audit and its rehiring of individuals, Mary’s Gone Crackers had at times consulted with an outside counsel. After the search warrant, Mary’s Gone Crackers cooperated with the government’s investigation and took remedial measures, including terminating employees, stopping use of the outside counsel involved, and taking various steps to ensure compliance with immigration laws and I-9 regulations, including use of E-Verify and the Social Security Number Verification Service.
The company also established an anonymous tip line so that employees can report any potential I-9 issues. The non-prosecution agreement requires Mary’s Gone Crackers to establish a corporate compliance program covering its I-9 procedures and its use of the E‑Verify system, and requires timely and complete disclosure of violations of immigration laws or regulations within 24 hours of discovery. It also requires Mary’s Gone Crackers to provide corporate compliance reporting to the United States Attorney’s Office for two years. No federal criminal charges will be brought against Mary’s Gone Crackers for the investigated conduct if the company complies with the terms of the non-prosecution agreement.

What started as a workers’ compensation case has resulted in an interesting decision from a chancery court judge in Nashville, Tennessee -- simultaneously revealing employer immigration violations and striking down a state immigration law.

Carlos Martinez, a native of Guatemala, was working in the United States earning $400 per week as an undocumented day laborer. On August 8, 2011, Mr. Martinez slipped and fell in wet grass while operating a lawn mower. The lawn mower ran over his arm and the blade severed his left elbow and forearm. More than three years after his injury, Mr. Martinez found himself in court -- up against his employer, the employer’s insurer, and the Attorney General for the State of Tennessee -- fighting his workers’ compensation claim and trying to prove that he was entitled to benefits despite his federal immigration status.

Employer Violations
Mr. Martinez worked for Commercial Services of Pegram, Tennessee, performing painting and other general labor. According to the court, Commercial Services never required Mr. Martinez to fill out an employment application or any other forms such as an I-9 form, nor asked Mr. Martinez whether he was legally eligible to work in the United States.

State Immigration Law
According to court documents, Mr. Martinez lost a “significant portion of his arm below his elbow” in the lawn mower accident in 2011, and sustained a vocational disability of84 percent to his left arm. A Tennessee state immigration law passed in 2009, “capped” Mr. Martinez’s recovery at 1.5 times his medical impairment rating because he was an undocumented worker – slashing his recovery to a vocational disability of36 percent.

The Tennessee legislature’s stated intent in passing the law was to “preserve the tradition of legal immigration while seeking to close the door to illegal workers in the State of Tennessee and to encourage the employers of Tennessee to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.” Tenn. Code Ann. 50-6-241(e).

Instead, what the trial court found is the law had the opposite effect -- making it less costly for employers to hire undocumented workers from a liability perspective, and providing a potential incentive for employers to circumvent the federal law.

More importantly, the court deemed the statute unconstitutional as a “state immigration policy” preempted by federal law. The court cited the U.S. Supreme Court decision in Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) in which an Arizona state law that attempted “to achieve one of the same goals as federal law – the deterrence of unlawful employment,” involved a conflict in the method of enforcement and served as “an obstacle to the regulatory system Congress chose.” Id. at 2505.

Proposed State Civil Penalties under IRCA
Another important distinction made by the trial court was that the Tennessee law imposed civil penalties on employers “to be paid directly to the State of Tennessee”. It found this provision was expressly barred by the terms of the Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil…sanctions…upon those who employ…unauthorized aliens”. 8 U.S.C. § 1324a(h)(2).

Conclusion
The trial court struck down Tenn. Code Ann. 50-6-241(e) in its entirety, and Mr. Martinez was awarded future medicals and permanent partial disability benefits of approximately $30,000. It remains to be seen if the State of Tennessee will appeal the trial court’s decision.

ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

In Mezonos Maven Bakery, 362 NLRB No. 41 (2015), the National Labor Relations Board (“Board”) considered whether unlawfully discharged undocumented workers may receive “conditional reinstatement.” On remand from the Second Circuit Court of Appeals, the Board concluded that the workers would be entitled to reinstatement on the condition that they prove their eligibility to work in the United States.

This case arose when five employees were discharged from Mezonos Maven Bakery (“Mezonos”) in Brooklyn, New York. They filed a charge with the Board, claiming they were engaged in protected activities under the National Labor Relations Act. Mezonos did not dispute this issue; rather, the company asserted the workers were not entitled to any remedy – back pay or reinstatement – because they were not authorized to work in the United States. Mezonos also asserted that it offered to reinstate five employees if they could provide valid work authorization documents, but none of the employees did.

On the issue of back pay, an Administrative Law Judge ("ALJ") found that the workers were entitled to back pay even though they were not authorized to work. The ALJ was silent as to the issue of reinstatement. On administrative appeal, the Board reversed the ALJ’s decision to award back pay to the workers, citing the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (undocumented workers were not entitled to back pay after their discharge). The Board’s decision was appealed to the Second Circuit U.S. Court of Appeals where it was remanded back to the Board for consideration of the sole issue of reinstatement.

On remand, and in its final order on March 27, 2015, the Board held that conditional reinstatement was appropriate in the Mezonos case. It explained that conditional reinstatement “is an appropriate remedy where […] an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both NLRA and Immigration Reform and Control Act (IRCA).” Mezonos at p. 3.

The Board also cited Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), in which the Supreme Court approved of a conditional reinstatement remedy in cases involving unlawfully discharged undocumented workers. The Sure-Tan court explained that making a reinstatement order conditional on compliance with immigration laws eliminates any potential inconsistency with those laws.

Furthermore, the Board cited one of its own prior decisions in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995) in which it held a conditional reinstatement order (requiring discriminatees to complete an I-9 form and present documentation reflecting work authorization) promoted the policy goals of IRCA and the NLRA.

The Board concluded that conditional reinstatement does not conflict with the U.S. Supreme Court’s more recent decision in Hoffman Plastic because that decision did not prevent reinstatement where it is conditioned on an employee providing proof of work authorization.

The Takeaway
This case highlights the importance of employers verifying their employees’ work eligibility. Although the remedy of a conditional reinstatement may be available for discharged undocumented workers, this issue might never have been litigated if Mezonos had taken proper steps from the beginning to verify the work eligibility of those five employees.

ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

California Governor Jerry Brown has amended a recently enacted state employment law that expanded workplace protections for California workers, including immigrant employees. The amendment to the law adds language which clarifies the statute, especially for immigration purposes.

Assembly Bill 263, which went into effect on January 1, 2014, provides greater protections against adverse employment actions to workers who are seeking to change their personal information or exercise their workplace rights. (See my prior blog post at LawLogix™) The statute says that employers may not discharge or take any other adverse employment action against an employee "because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job." Thus, even if an employee made a prior false statement about their immigration status, an employer cannot discharge the employee for making such a statement.

Assembly Bill 2751 amends AB 263 by adding language that employers may not discharge, discriminate, retaliate, or take any adverse employment action against an employee for updating or attempting to update personal information "based on a lawful change of name, social security number, or federal employment authorization document" (e.g., permanent resident card or Employment Authorization card), unless the change relates to skills, qualifications, or knowledge required for the job.

For example, if an employee in California presents a new permanent resident card, Employment Authorization card and/or social security number, the employer may not discharge or take any adverse employment action against that employee. These types of situations occur when an employee receives employment authorization, such as through Deferred Action for Childhood Arrivals (DACA) or permanent residency through an immediate family member’s petition.

Employers may, however, still discharge or take adverse employment action against an employee who makes false statements that do not involve updating their immigration status or other personal information.

As the above language demonstrates, these situations can become complicated. Thus, California employers should seek the advice of an immigration compliance attorney to ensure compliance with the law.

ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .

For several years now, the U.S. Department of Justice’s Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has published a helpful guide for employers known as the DOs and DON’Ts of using E-Verify. Building on that same information, the OSC recently released a companion guide known as the “Fact Patterns Flyer”, which includes real examples of employer mistakes in the hiring and firing process, Form I-9 and E-Verify processes, and INA anti-discrimination compliance.

Examples were sourced from cases that OSC investigated in the last four years, and here are some excerpts:

-What if an employer refuses to hire workers who look or sound ‘foreign’?
“Employer agreed to pay $18,550 in back pay to a non-U.S. citizen….”

-What if an employer asks Permanent Residents for a new green card when the current card expires?
“Employer agreed to create a $100,000 back pay fund to compensate terminated workers and to pay $175,000 in civil penalties…”

-What if an employer retaliates against a worker who asserts rights protected under the INA anti-discrimination provision?
“Employer paid $1,800 in back pay and $3,000 in civil penalties…”

-What if an employer prefers to hire exclusively U.S. citizens when there is no law, rule or regulation requiring employees be U.S. citizens?
“Employer agreed to pay $100,000 in civil penalties…”

These scenarios show why employers, both large companies and small businesses, should have immigration policies in place, such as an I-9 Compliance Policy and Anti-Discrimination Policy, to avoid using separate standards when requesting documentation from U.S. citizens and non-U.S. citizens. It is also prudent for employers to periodically self-audit under the supervision of an immigration compliance attorney to help avoid potential errors in the hiring, firing, and E-Verify processes.

ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .